QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
|LONDON BOROUGH OF LAMBETH||Respondent|
|R. (ALAN FORBES)||Claimant|
|LONDON BOROUGH OF LAMBETH||Defendant|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Kerry Bretherton (instructed by London Borough of Lambeth Legal Services) appeared for London Borough of Lambeth.
Crown Copyright ©
"(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.
The court shall make such an order unless the provisions of section 128 apply." (My emphasis).
The relevant court will usually be the county court, since section 138(3) deprives a person who takes proceedings in the High Court of any costs.
"(1) The court shall not entertain proceedings for the possession of a dwelling-house unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.
(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor".
"(1) A request for review of the landlord's decision to seek an order for possession of a dwelling-house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.
(2) On a request being duly made to it, the landlord shall review its decision.
(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section.
(5) The landlord shall notify the person concerned of the decision on the review.
If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.
(6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as to the date after which proceedings for the possession of the dwelling-house may be begun".
"Applications for possession must lead to eviction. Landlords may, therefore, wish to devise their own procedures (such as the collection of rent plus arrears by instalments) for introductory tenants to replace the use of suspended possession orders."
2. The Mayor and Burgesses of the London Borough of Lambeth intend to apply to the Court to make an order for requiring you to give up possession of [the premises] .
4. Possession is being sought on the grounds that you have failed to observe or perform an obligation of the Introductory Tenancy which was granted to you on 20th MARCH 2000.
5. Particulars of the breaches are as follows:
In breach of Clause 21 of Lambeths Tenancy Conditions, March 2000. The premises is [sic] being used for selling of drugs and for immoral purposes. On or before 28th September 2000 the premises was raided by the police and they found drugs on the premises. On various dates and times people have been observed entering property".
"RE: DECISION NOT TO TERMINATE YOUR INTRODUCTORY TENANCY
The Council has decided not to proceed with terminating your tenancy but will be monitoring your tenancy for a period of 12 months and then will review the situation and advise you. You will continue as an introductory tenant during this period.
Any further breaches of your tenancy agreement may result in the loss of your home.
You should be aware that failure to to [sic] keep an agreement to clear your rent arrears, or your eviction for a breach of the tenancy condition, could lead to publication of your name and address in the local press and elsewhere.
If you wish to discuss this matter please contact me".
"Termination of Introductory Tenancy
Unfortunately this office continues to receive complaints about noise and disturbance in and around your flat caused by your visitors.
This being the case I regret that I have no alternative but to continue the legal proceedings commenced when the Notice of Proceedings for Possession was served. The Council's legal section has now been instructed to apply to the Court for a possession order which could lead to your being evicted from your home".
Strictly, it was inaccurate to refer to the continuation of legal proceedings, since no legal proceedings had yet been commenced.
"was designed to enable a housing authority to get rid of undesirable tenants quickly, not only in the interests of the housing authority so as to enable it to reallocate the premises to more suitable candidates for housing, but also in the interests of neighbouring tenants of the housing authority who often suffer from the nuisances and disturbances caused by unruly tenants."
"If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy".
"Thus, it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants enabling them to challenge any unfairness and/or any infringement of their Convention rights particularly under Article 8.
102. Thus, as it seems to me, it cannot be said that section 127 or the scheme at the macro level is incompatible with Article 6".
" we should take the tenancy from you, but you can keep it on condition that you pay the liable rent plus arrears each week without fail"
" If you miss a week, you will lose the tenancy and we will take you to court for the rent arrears".
And a letter was sent on the following day which said
"I would confirm that the decision to terminate your tenancy by serving you with a Notice is upheld, however, the Panel decided to suspend action at this stage on condition that the weekly collectable rent and £3.00 is paid each week without fail.
Should any payments not be made, an application for possession will be made to the County Court ".
"29. As I see it, that reason does not change in substance in this case. What happened was that the appellant and the council made an agreement which, so long as it was kept, would enable the appellant to remain as an introductory tenant (with all the advantages that that would bring) but she had to pay £3 off the arrears and the rent in full. Unfortunately she failed to keep her side of the agreement. "
30. As I see it, there was no substantial difference between the ground on which the landlord originally gave notice and the ground on which it ultimately applied for possession. It was the failure to pay rent promptly in full. So, as I see it, the landlord could rely on the original notice.
31. Different considerations might arise if a local authority's reasons for seeking possession change, but that is not this case and I would prefer not to express a view on that situation until the facts arise. ".
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
MR JUSTICE CRANE: I am handing down the judgment this morning. In response to one comment counsel will probably notice that I did slightly alter paragraph 41.
MR BURTON: My Lord yes.
MR JUSTICE CRANE: As far as the order is concerned, Miss Bretherton, you kindly provided a suggested order.
MISS BRETHERTON: My Lord I have had an opportunity to discuss the two draft orders with my learned friend. The position is that clearly the simpler and shorter order is that of judicial review proceedings. I think it is correct to say that my learned friend agrees that as drafted - yes he is nodding. Subject, of course, to the Court's views.
With regards to the longer order in relation to the appeal proceedings, the position there is that the heading clearly ought to read "appellant and respondent".
MR JUSTICE CRANE: Yes.
MISS BRETHERTON: The case number is correct. There is certainly no dispute with regard to costs provisions. The second number in the order is something that I do not think that my learned friend has strong views upon. He properly mentions that of course there is a provision in the provisions of the legislation, which provides that proceedings are not finally disposed of until the time for any period for appealing expires. Clearly, my client's concern would be that, if they were to take the view that they wanted to apply further, they would not want those proceedings to become academic and pointless on the basis that the tenancy becomes a secure tenancy.
Notwithstanding the protection in the legislation, I would ask for this order, because it does perhaps set out the exact wording and also means that where my clients, for example, to take a view this afternoon, upon looking at your Lordship's judgment, that they did not want to take the matter any further, then they have the right to notify the appellant immediately and the tenancy would therefore be secure with all the matters that would attract. I have to confess that one reason why that is in my client's interest is clearly took the view they wish to proceed down, terminating a tenancy on the basis it was secure. Clearly they could not issue those proceedings until the appeal period had expired even if they were not going to go down that route were this not in the order.
My Lord, also, it just seems to set matters out fully. So on that basis I would ask the court to include that draft, include the matters as drafted. The third aspect of course of the case is that I do apply for permission to appeal.
MR JUSTICE CRANE: Can we deal with that in one moment and the other matters are not controversial except for the respondent.
But something has just occurred to me in connection with what you have been saying. As the order stands, or the orders stand, the application for judicial review would be dismissed now. I suppose in the event of an appeal, that could be kept open by an appropriation appeal, would it not?
MISS BRETHERTON: Precisely, the position is that your Lordship made clear in the judgment is that the basis upon which you dismiss the judicial review was because it was not necessary to find for the appellant.
MR JUSTICE CRANE: In other words, if the respondent were to appeal the civil matter, by a cross appeal, the tenant could reserve his position in relation to judicial review and keep that open if he wanted to and he was entitled to.
MISS BRETHERTON: The only thing that might make matters simpler which is entirely a matter for the court and my learned friend is that of course one has to apply to the court at first instance. It may be that my learned friend would wish to formally make an application for permission to appeal in relation to the judicial review on the basis it would be dismissed, in order that any further matter would then automatically, were I to be successful in any permission application, be looked at by the Court of Appeal.
MR JUSTICE CRANE: I follow that, yes. He should apply today but it is a bit academic until this - I will consider the question of application of appeal in a moment. One way of dealing with it would be to say in the Administrative Court matter the application be dismissed but this order not to take effect until any time for appealing or appeal in the civil matter is finally disposed of - I have not tidied up the wording of that. In other words the dismissal of the Administrative Court matter, the final dismissal would not take effect until an appeal had been disposed of. Would that achieve anything?Perhaps it would not achieve anything.
MISS BRETHERTON: I think the difficulty would then be my learned friend would not have really anything to appeal were he to suddenly want to on the basis were I given permission.
MR JUSTICE CRANE: He could still appeal the decision of the principle of the decision, could he not? But may be the answer is that for to leave that as it is and for me to consider the question of permission to appeal and, if I grant it, then to consider what should happen in relation to the tenant's possible appeal. Similarly, if I were to refuse it, both applications could be made in the Court of Appeal. I make it clear for future reference that it is certainly true that I have only dismissed the judicial review proceedings because it is not necessary in view of my decision on the civil appeal and if that were to change then it might be rather different.
MISS BRETHERTON: My Lord I entirely appreciate that.
MR JUSTICE CRANE: That is made clear.
Just can we leave appeal for the moment. Mr Burton, apart from the appeal point, is there anything else you want to say?
MR BURTON: In terms of the second aspect of the order on the appeal, I do rather take the view that section 130(5) probably would take care of it. In that respect I am very much in your Lordship's hands if your Lordship feels this is the most appropriate way of making the intentions clear then certainly I am happy to oblige by that view.
MR JUSTICE CRANE: Any doubt would it not.
MR BURTON: Probably, yes, I cannot see it causing any problems, as it were, it would probably be a belt and braces type of approach.
In relation to the judicial review my Lord I would favour the option put forward by your Lordship because I think it probably again would be a honest reflection of what was decided today rather than leaving up to the appellant to make a rather artificial appeal if required in circumstances in the future. I think the better order-
MR JUSTICE CRANE: Let me decide what to do about the Miss Bretherton's application first and then we will go from there. Miss Bretherton, what do you want to say about the question.
MR BURTON: My Lord, the position is of course this would be a second appeal within the meaning of the CPR and on that basis not only would I have to show reasonable prospect of success but also that the matter was of some importance. My Lord, I say the matter is of some importance because of the case of Stone and because the position is that it is absolutely essential to letters of this sort, in such cases, that a local authority have a scope to give the second chance, and the position is that really the result of your Lordship's judgment could be that, unless the express words were said, that we dismiss the application, that on that basis that the matter would be dismissed.
My Lord, I do not propose to go into huge detail because of the substance as I said in my note to your Lordship. I am repeating matters that your Lordship has already decided against me on the substantive application. My Lord, I would say it is a matter of significance to local authorities across the board not just my clients. On that basis it is a matter of public importance.
MR JUSTICE CRANE: Thank you. No, Miss Bretherton, I am afraid I am against you. Although I quite appreciate the topic is one of importance and the local authorities need to know where they stand, in my view Stone really established the principles and this case turned, in the end, on the interpretation of the review decision letter. There is no doubt that local authorities can, by appropriate wording, preserve their position. But my conclusion on the interpretation of the letter is that they did not do so here. I am afraid I do not regard this as being a real prospect of success. So I am refusing permission to appeal.
Now, just let us return to other questions. If you go to the Court of Appeal, and do decide for that, if there is to be an appeal. Mr Burton, why can you not in those circumstances preserve your position by appealing the order in the judicial review proceedings?
MR BURTON: My Lord, I do not think it is really a case of not being able to, it is really trying to decide what the most appropriate form being.
MR JUSTICE CRANE: If they gave leave the tenant would want to take part in the appeal and would want to argue in the alternative that the judicial review proceedings should be decided in his favour. So if Miss Bretherton managed to persuade the Court of Appeal to give permission, as it were, the tenant would be there and back to the Court of Appeal. But I rather imagine they would be sympathetic to the idea, if it arose, of giving you leave.
MR BURTON: I think that is right.
MR JUSTICE CRANE: If they were not sympathetic that would be because they took the view for some reason it was not appropriate.
MR BURTON: The issue of judicial review certainly would arise if, after an appeal the Court of Appeal were minded to overturn your Lordship's judgment, then it would be appropriate for the Court of Appeal to deal with judicial review there and then. The only difference therefore, on the one hand, having a similar order to that envisaged by my learned friend in respect of the appeal and allowing the appellant, an appeal on the refusal on the permission for judicial review, would seem to be one of costs really and that is all my Lord. We would be required to file respondent's notices etcetera etcetera. It only strikes me as being slightly artificial in the circumstances because of the reasons that your Lordship has given in the judgment that your Lordship has.
MR JUSTICE CRANE: May be. If we follow the course that I was tentatively suggesting. If the Court of Appeal were to hear an appeal and to allow it, on the County Court proceedings, you would need to appeal in relation to the judicial review in order to get an order in your favour. At the moment you have not got an order in your favour so you need an appeal to get one.
MR BURTON: Would that be the case, my Lord, if the order was expressed to be not to take effect until.
MR JUSTICE CRANE: The dismissal would not then take effect until, but it would leave the judicial review proceedings in the air, because it does not seem to me appropriate on reflection to say that in the event of the appeal being allowed then judicial review is granted because frankly that is something the Court of Appeal want to consider, frankly, in the light of the other considerations in the case. I think on reflection it does not actually achieve anything. Do you want to say anything else? I think your position is reserved.
Very well, no, I will leave the order as it is. Perhaps counsel will submit a fair draft, I will initial them as they stand. Is there anything else? Thank you both very much. (Pause).
MR BURTON: I do apologise. My learned friend has indicated to me, and I suspect in fact she may be right, then I am obliged to ask for permission to appeal if we are going to go down that route because I am obliged to ask the first instance court. On that basis I do make the application.
MR JUSTICE CRANE: But as you can appreciate really, since it will not arise unless Miss Bretherton succeeds I think the right course is to refuse it now, and then the Court of Appeal can decide what they do about it, if there is an appeal on the other matter.
MR BURTON: The reasons will be clear.
MR JUSTICE CRANE: Perhaps that could be put in, when it is resubmitted. Thank you.